Trump threatens to invoke constitutional power to adjourn Congress because of hold-up over nominees

Courtney Subramanian / USA TODAY

Thursday

Apr 16, 2020 at 10:14 AM

WASHINGTON – President Donald Trump on Wednesday threatened to invoke his constitutional authority to adjourn both chambers of Congress in order to confirm nominations to his administration he said are needed to deal with the coronavirus crisis.

"The Senate should either fulfill its duty and vote on my nominees or it should formally adjourn so that I can make recess appointments," Trump said during a Rose Garden press conference. "If the House will not agree to that adjournment I will exercise my constitutional authority to adjourn both chambers."

According to Article II, Section 3, a president may, "on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper."

The Republican-controlled Senate and the Democratic-controlled House would have to disagree on when to adjourn in order for Trump to intervene.

Trump's ire seems to be directed at the Senate, which has the power to confirm appointments.

The Senate, which is not due back in Washington until May 4, has been holding pro forma sessions, in which the upper chamber convenes briefly. Trump called on the Senate to stop holding these sessions or formally adjourn so he can make recess appointments, which he said are crucial to his administration's response to the spread of COVID-19.

He called the extended recess during the coronavirus pandemic "a dereliction of duty."

"The current practice of leaving town while conducting phony pro-forma sessions is a dereliction of duty that the American people cannot afford during this crisis," he continued. "It's a scam and everybody knows it, and it's been that way for a long time."

If the Senate is in recess, the president could then appoint some officials who would otherwise require Senate confirmation, which is why the upper chamber holds "pro forma" sessions in order to block the president from making recess appointments.

The Supreme Court ruled in 2014 that then-President Barack Obama's recess appointments made in 2012 were invalid because he made them while the Senate was holding pro-forma sessions.

Trump acknowledged such an action would get a legal challenge.

"If they don't approve it, we will go this route. And we'll probably be challenged in court and we'll see who wins," he said.

"Senate Majority Leader Mitch McConnell spoke with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process," a spokesman for the Kentucky Republican said. "The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules that will take consent from Leader Schumer.”

Jonathan Turley, a constitutional lawyer who argued against Trump's impeachment last year, said the power has never been used before "and should not be used now."

"Senators of both parties should vote to support the congressional control over adjournment. Absent a 'disagreement' there is no presidential power to adjourn under Article II. A pandemic should not be an invitation for pandemonium," he tweeted.

Barb McQuade, a former federal prosecutor and University of Michigan law professor, questioned whether Trump really has the power to dismiss Congress.

“No and no. Trump has no authority over a separate and co-equal branch of government. It is odd that he keeps boasting of authority he lacks, while rejecting responsibility he has," she said.

During the press conference, the president railed against Democrats for holding up long-pending appointments, including the undersecretary of agriculture who is responsible for food security programs, two members of the Federal Reserve Board and the director of national intelligence.

"Perhaps it’s never been done before, nobody’s even sure if it has," he said. "But we’re going to do it. We need these people here. We need people for this crisis, and we don’t want to play any more political games."

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